Former Homeland Security Adviser Explains Why He Admires the UAE's Dictators

In a recent New York Times op-ed piece, Richard Falkenrath, who served as deputy homeland security adviser in the Bush administration and now works for former Homeland Security Secretary Michael Chertoff's consulting firm, explains why the BlackBerry ban that the United Arab Emirates announced last week "met with approval, admiration and perhaps even a touch of envy" from "law enforcement investigators and intelligence officers." The ban is perfectly reasonable in light of the UAE's legitimate security concerns, Falkenrath says, "because Research in Motion, the Canadian company that provides BlackBerry services, refused to modify its information architecture in a way that would enable authorities to intercept the communications of select subscribers." In other words, the company declined to facilitate the authoritarian regime's snooping on BlackBerry users—a position that strikes Falkenrath as plainly unacceptable:

Monitoring electronic communications in real time and retrieving stored electronic data are the most important counterterrorism techniques available to governments today. Electronic surveillance is particularly vital in combating global terrorism, where the stakes are highest, but it is a part of virtually all investigations of serious transnational threats….

The United Arab Emirates is in no way unique in wanting a back door into the telecommunications services used inside its borders to allow officials to eavesdrop on users. In the United States, telecommunications providers are generally required to provide a mechanism for such access by the Communications Assistance for Law Enforcement Act of 1994 and related regulations issued by the Federal Communications Commission. As a general principle, information-service providers here must provide a means for federal agencies, usually the F.B.I., to view the ostensibly private data of their subscribers when lawfully ordered to do so.

The F.C.C. is not, however, a national security agency: it is an independent, bipartisan commission whose members serve fixed terms. The commission interprets a variety of statutes and balances many different interests, including the business success of telecommunications providers and the convenience of consumers, and its rulings are subject to legal challenge in the courts.

As a result, there remain a number of telecommunication methods that federal agencies cannot readily penetrate. Given the way the F.C.C. operates, the prospect of it taking a swift, decisive action to make these services accessible to the government is almost inconceivable. Hence the envy some American intelligence officials felt about the Emirates' decision.

Yes, dictators sure are good at avoiding legal barriers to surveillance. They are also never stymied because "governmental intrusion into ostensibly private communications offends liberal sensibilities," as Falkenrath dismissively describes civil libertarian concerns about snooping in the name of national security. Here are some other obstacles the UAE avoids, according to the State Department's most recent report on the country's human rights record: elections, representative government, an independent judiciary, governmental transparency, freedom of speech, freedom of the press, freedom of assembly, freedom of association, and freedom of religion. The State Department adds that "there were unverified reports of torture during the year," that "security forces sometimes employed flogging as judicially sanctioned punishment," that "arbitrary and incommunicado detention remained a problem," and that "legal and societal discrimination against women and noncitizens [who represent 80 percent of the population] was pervasive."

Neverthless, says Falkenrath, "the Emirates acted understandably and appropriately" in banning BlackBerries. The lesson of this episode, according to Falkenrath: "Governments should not be timid about using their full powers to ensure that their law enforcement and intelligence agencies are able to keep their citizens safe." Some governments, of course, have fuller powers than others, which makes their citizens (and noncitizen residents) extra safe.